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CAV GRANTS RARE SUA-SPONTE EN BANC REHEARING

[Posted September 28, 2010] Now here’s one you don’t get every day: The Court of Appeals has decided, on its own motion, to grant en banc rehearing of a panel decision issued just three weeks ago. The case is Foltz v. Commonwealth, and involves the legality of placing a GPS transponder under the bumper of a suspect’s car.

Now, how in the name of the Fourth Amendment can you have a rehearing when no one has asked for it? Easy; the statutes make a specific provision for just that:

“The Court of Appeals shall sit en banc (i) when there is a dissent in the panel to which the case was originally assigned and an aggrieved party requests an en banc hearing and at least four judges of the court vote in favor of such a hearing or (ii) when any judge of any panel shall certify that in his opinion a decision of such panel of the court is in conflict with a prior decision of the court or of any panel thereof and three other judges of the court concur in that view.”

It’s not hard to figure out what happened here. The chief judge, who dissented (well, actually he filed a concurrence urging a narrower decisional basis; but let’s not quibble) from the panel decision, polled his colleagues and got at least three of them to agree that the full court should hear the matter. The novelty of this issue, and what it portends for privacy, probably made his job a tad easier.

When will the court entertain arguments, you ask? Well, the en banc court sits today and won’t reconvene until the end of November. The case theoretically could be argued then, but the briefing schedule called for in the rules could have the reply brief filed just two weeks beforehand. I think it’s more likely that the case will be argued to the full court early in 2011, and decided within about two months thereafter.